Just before the holidays the US Department of Justice Civil Rights Division concluded a 3 year investigation into America’s Toughest Sheriff, Maricopa County’s (the Phoenix metro) Sheriff Joe Arpaio.  The investigation found discriminatory policing against Latinos, discriminatory jail practices against Latinos, a general culture of bias against Latinos in the Sheriff’s Office, and
a practice of retaliatory actions against individuals who complain about the Sheriff’s Office.  A copy of the DOJ’s letter detailing the investigation and its conclusions can be found here.

This blog isn’t dedicated to civil rights issues, but I bring up this report because the DOJ’s letter to the Maricopa County Attorney has two passages that bear mentioning here.  The letter starts by discussing the investigation and includes a footnote that states:

Our investigation was delayed when [the Sheriff’s Office] refused to provide . . . access to pertinent material and personnel.  After repeated attempts to resolve the dispute short of litigation, the US filed a lawsuit . . . to secure [the
Sheriff’s Office] compliance with its legal obligations to provide information pertinent to our investigation. [italics added]

And then after discussing the conclusions from the investigation, the letter states

[E]ffective resolution of this matter will require the development of a comprehensive written agreement along with federal judicial oversight.  We prefer to resolve this matter without resort to further litigation, although we will file suit if necessary.  We would like to . . . begin a constructive dialogue about comprehensive and sustainable ways to remedy the violations of the Constitution and federal law.  [italics added]

Sheriff Joe, the most popular politician in Arizona, has claimed the investigation is a political witch-hunt, denied the allegations of racial profiling, and rejected the findings of retaliation.  However, in an interview in the local paper after the letter was released, the Sheriff said that he will speak with the Justice Department to see if a settlement can be reached, but if he has to go to court he will do so “to fight for the people of Maricopa County.”  But he’s sounded more conciliatory lately.

So what kind of settlement discussions might occur between the Sheriff and the DOJ?  Is it the typical give-and-take that we typcially think of when discussing settlement negotiations, even in plea bargaining?  Or is the DOJ asking for pure capitulation, which, according to the local paper, was the result the 20 other times when it has targeted law-enforcement agencies for similar violations?  I think the Sheriff believes (hopes?) he will be in the first kind of negotiation, but is prepared for  the second.  The Sheriff said he is going to speak with the DOJ, but that  his department will not be “controlled by some federal monitor or something.”  I will be surprised if the DOJ accepts anything but capitulation.  As a result, it is extremely unlikely that  this case will be resolved short of time-consuming, costly, and embarrassing litigation, which is where Professor Fiss fits in.

In his famous article entitled “Against Settlement” Yale law professor Owen Fiss argued that settlements were problematic for a number of reasons including that the lack of judicial oversight can be troublesome.  In the world of civil litigation, where there are two parties who can make decisions, even bad ones if they want to, Fiss’ view is problematic and has been roundly criticized as judicial system centric instead of litigant centric.

It turns out that Fiss is a veteran of 1960’s civil rights litigation and my understanding is that he wrote his article with civil rights cases in mind.  The stakes are high, the government (or prevailing culture) is potentially violating the law, and that wrongdoing either should be exposed or the accused should be exonerated.  But doing that will be expensive for the county and its taxpayers, and has the potential to do a lot of damage to a lot of local politicians who support the Sheriff, not to mention the Sheriff and his legacy.  Settlement may be better all the way around, but in this instance I agree with Fiss.  Either expose the wrong doing or let the Sheriff prove that his department is not violating the law.  The only way to do this is through the judicial oversight that comes with litigation.  Maricopa County’s residents are also entitled to the public disclosures associated with litigation so they can understand what really is going on in the Sheriff’s office.

This opinions expressed here are solely those of the author and do not reflect the opinions or policies of the Sandra Day O’Connor College of Law or Arizona State University.